4LawSchool.com Outlines Bank
Author:
Professor: Dean Deutch Johnson v. M’Intosh p.25
Facts: An Indian tribe sold a plot of land
to Johnson. Thirty years later, the
Issues:
Whether the title given by the Indians can be recognized in the Courts
of the
Rule: The decree of 1763 stated that no one
could purchase land from an Indian because the land was not theirs, it belonged
to the government.
Application: Either because of the state of
conquering of the decree of 1763, the Indian government, could not sell the
land to the Johnson therefore it was like the sale never took place.
Conclusion/Holding: Judgment for Defendant
NOTES:
Ejectment cause for action.
(gets trespassers off)
Decree of 1763 gave no right to Indians to sell property
Tee-Hit-Ton Indians v.
United States p.36
Facts:
The tribe wanted compensation for the taking of certain timber by the
Issues:
Whether the tribe has the right to unrestricted possession, occupation
and use.
Application:
There has been no recognition by Congress of any legal rights in
petitioner to the land in question.
Indian occupation of land without government recognition of ownership
creates no rights against taking or extinction by the
Conclusion/Holding: Indian occupancy may be extinguished without
compensation.
Pierson v. Post p.51 NY
Facts: While Post was hunting and pursuing a fox with dogs, Pierson
intercepted the fox, killed it, and carried it off. From a trial court decision for the
plaintiff, the defendant appealed.
Issues:
Whether Post, by his pursuit, acquired such a right to, or property in,
the fox.
Rule: Property in such animals is acquired
by occupancy only. Pursuit alone vests
no property or right in the huntsman unless the animal is actually taken.
Application: Mere pursuit gave Post no legal
right to the fox.
Conclusion/Holding: Judgment reversed
Dissent: Kill all
foxes. If hunted professionally, it
should go to pursuer.
NOTES:
Form of action - trespass on the case (deals with personal
property with a specific remedy (money)
Elliff v. Texon Drilling
Facts: Both parties owned property over a huge gas reservoir in
which drilling rigs were established.
The defendant’s rig blow out and destroyed property of the
plaintiff.
Issues:
Whether the law of capture absolves respondents of any liability for the
negligent waste or destruction of petitioners’ gas and distillate.
Rule: The landowner is regarded as having
absolute title in severalty to the oil and gas in place beneath his land. Under the law of capture, there is no
liability for reasonable and legitimate drainage from the common pool.
Application: The negligent waste and destruction
of petitioners’ gas was neither a legitimate drainage of the minerals from
beneath their lands nor a lawful or reasonable appropriation of them. Consequently, the petitions did not lose
their right, title, and interest in them under the law of capture
Conclusion/Holding: Judgment reversed
NOTES:
Surface owner is the owner of the land and also the absolute
owner of the oil and gas below.
The law of capture modifies by allowing a producer to become
the owner of the oil; not trespasser.
Can’t use injurious capture/drilling - liable if do so
That rule modified by negligence - must capture - if not -
just waste - no law of capture.
Water: natural situation prevails -
surface water system
streams/groundwater - prior appropriation/use - 1st
user owns
permit system - state/organizations gives permits
riparian owner
reasonable use - balance rights of all
correlative rights - defined water for each user
free use/absolute ownership - creates conflicts
International News
Service v. Associated Press
p.66
Facts: INS waits for AP to release its stories on a community
bulletin board or a newspaper, then steals the idea and sells it to other
newspapers. From a
judgment for AP, INS appeals.
Issues:
Whether defendant may lawfully be restrained from appropriating news
taken from or from newspapers published by them, for the purpose of selling it
to defendant’s clients.
Rule: Upon the publication of news, property right is lost and may
be regarded as public knowledge. Each
party is under a duty so to conduct its own business as not unnecessarily or
unfairly to injure that of another.
Application: AP remains the owner of the stories
after they are published as far as their competition is concerned. This is unfair competition in business
Conclusion/Holding:
Affirmed.
Dissent #1: Property
does not arise from value. The defendant
should be enjoined from publishing news obtained from the AP for hours after publication
by the plaintiff unless it gives express credit to the AP.
Dissent #2: An
essential element of individual property is the legal right to exclude others
from enjoying it. They are merely using
its product without making compensation.
That they have a legal right to do, because the
product is not property. INS
should be able to use stories only if they do not credit AP. Legislatures should deal with this problem
and create laws.
Moore v. Regents of the
University of California p.82
Facts: Doctors, who were treating
Issues:
Whether it was a breach of fiduciary duty to disclose facts material to
the patient’s consent.
Rule: Conversion.
Application:
The complaint does not satisfy the established requirements of a
conversion cause of action. The cell
line was new and different from the plaintiff’s cells.
Conclusion/Holding:
Should be left to Legislature.
Dissent: The complaint
fully satisfies the established requirements for a conversion cause of action.
Nome 2000 v. Fagerstrom p.136
Facts:
From 1944 to 1978 D used, staked, and improved a cabin. From a denial for P’s directed verdict, P
appealed.
Issues:
Whether the jury could reasonably conclude that the Fagerstroms
adversely possessed the parcel.
Rule: For the statutory period ‘his use of the land was continuous,
open and
notorious, exclusive and hostile to the true owner.’
Application: The defendants cared for the parcel
as if they owned it. A quick
investigation of the premises would have been sufficient to place a reasonably
diligent landowner on notice that someone may have been exercising dominion and
control over their property.
Conclusion/Holding:
We conclude that the defendants adversely possed property.
Where, as in the present case, the land is rural, a lesser
exercise of dominion and control may be reasonable.
Where physical visibility is established, community repute is
also relevant evidence that the true owner was put on notice
NOTES:
The requirements:
actual - take and use the property as if it
were yours {may be easement if you just use it}
continuous - be there physically
exclusive - keep trespassers off the land like
what a owner would normally do
open and notorious - needs to be sufficient warning to
the public that a claim is being asserted
hostile (intend to deprive the
owner)(adverse) /under claim of right (could have a deed) / under color of
title for statutory (have document that intends to give you the property, may
decrease time needed)
One
objective test used, or
Two
subjective tests used:
Intentional dispossession - the
adverse possessor must be aware that she is occupying
property owned by someone else and must
intend to oust the true owner.
Good
Faith - those who mistakenly occupied property owned by someone else.
statutory period (tacking) - 21 years in
[pay taxes in some states] - some states require that you paid the property taxes during the
AP claim.
Can not
gain adverse possession when you are given permission to occupy the land.
Reasons for AP:
1.
Land development
2.
Distribution of wealth.
3.
Keep land claims alive
(Doctrine of repose)
Burden of proof belongs to
the AP
Standard of proof is clear
and convincing evidence (preponderance of the evidence is commonly the same but
the court distinguishes here)
Community Feed Store, Inc. v. Northeastern Culvert Corp. p.169 Vt
Facts: P sought a prescriptive easement for a parcel of land 60 X 90
feet owned by the D. Vehicles would use
the gravel lot for turning and backing while delivering goods to both the P and
D. Finding for the D, P appealed.
Issues:
Whether the court erred in making two findings of fact. First, if the plaintiff failed to prove the size of the easement,
and secondly, the use of the area was made with the permission of the fee
owner.
Rule: Slight deviations from the accustomed
route will not defeat an easement, only substantial changes which break the
continuity of the course to travel.
Application: The traveling of trucks entering the
easement had only slight deviations.
Plaintiff met its burden by establishing the general outlines of the
easement with reasonable certainty.
Conclusion/Holding: Judgment reversed.
-----Gravel area in
question
Feed
NCC Store
Acquiescence - acting like you have possession as the owner
(mindset of actual owner), different from permissive
The requirements for easements are generally the same but are
more lapse in most states.
Brown v. Gobble p.141 WV
Facts: D purchased their property by deed and were informed that
there property ran up to a fence, when, in actuality, the two-foot-wide tract
of land belonged to the P. The D took
care of the P and refused to let the P build on the property once the truth was
known. The P sued and won and the D
appealed based on tacking.
Rule: Where one by mistake occupies land up
to a line beyond his actual boundary, believing it to be the true line, such
belief will not defeat his right to claim that he holds such land adversely or
hostility under the doctrine of AP.
Application:
The land appeared to be part of the defendant’s property. They contend that they have established
adverse possession by tacking on the time periods that their predecessors in
title claimed the two-feet-wide tract.
Conclusion/Holding:
Judgment reversed.
Charrier v.
Facts:
P excavated two
tons of Indian artifacts. The TC denied
relief under the theory of unjust enrichment.
P appealed.
Issues:
The adequacy of proof that the Tunica-Biloxi tribe are
descendants of the inhabitants of the burial grounds, the ownership of the
artifacts, and the applicability of the theory of unjust enrichment.
Application:
The descendants of former Tunica Indians have adequately satisfied the
proof of descent. The fact that the
descendants resolved to bury certain items along with the bodies of the deceased,
does not result in a conclusion that the goods were abandoned. As for the unjust enrichment; plaintiff has
failed to prove that he has sustained the type of impoverishment needed.
Conclusion/Holding:
Judgment affirmed.
NOTES:
Declamatory relief
Grave robbing case
He claims he dug up buried treasure. The items were not gold and silver or stolen
goods and therefore distinctive.
Mr. Hoshman did not have the authority to allow access to the
property, therefore the defendant was a trespasser.
Items can be either lost, mislaid,
or abandoned
State v.
Facts:
Tedesco, a farmer who hires migrant workers, called police when
defendants, Tejeras and Shack walked onto his property to check on a injured
worker and a worker who needed legal advise.
Issues: Whether the migrant worker should be deemed to be a tenant
and thus entitled to the tenant’s right to receive visitors or whether his
residence on the employer’s property should be deemed to be merely incidental
and in the aid of his employment.
Rule: Representatives from
charities may enter upon the premises to seek out the worker at his living
quarters.
Application:
The migrant worker must be allowed to receive visitors there of his own
choice, so long as there is no behavior hurtful to
others. The farmer is entitled to pursue
his farming activities without interference but he cannot assert a right to
isolate the migrant worker in any respect significant for the worker’s well
being.
Conclusion/Holding: The defendants did not violate the trespassing statue. Judgment reversed.
Notes:
$100,000 in attorney’s fee in a NJ
appeal.
Property rights serve human values. Human rights are higher than property rights
in NJ. (liberal)
The key is communication to the farmworkers.
Most justices say that property rights have changed over
time.
Lloyd Corp., Ltd. V. Tanner
Facts:
Lloyd Corp., owner, made the D stop
distributing handbills. The DC found the
Center was equivalent to a public business district and that their rules
violated First Amendment rights. The
Court of Appeals affirmed.
Issues:
Whether respondents, in the exercise of asserted First Amendment rights,
may distribute handbills on Lloyd’s private property contrary to its wishes and
contrary to a policy enforced against all handbilling.
Rule: The Constitution does not require private property to be used
for public use, nor does it lose its private character because the public is
invited to use it.
Application:
Marsh v.
Conclusion/Holding: Judgment reversed.
DISSENTING: In Marsh,
“the more an owner, for his advantage, opens up his property for use by the
public in general, the more so his rights of those who use it”. It is a balance we are striking between
freedom of speech and freedom of private property.
N.J. Coalition Against
War in the
Facts:
The respondent petitioned 10 large malls to hand out anti-war
leaflets. TJ found for Ds and AJ
affirmed.
Issues:
Whether the defendant regional and community shopping centers must
permit leafleting on social issues.
Rule: Constitution affords no general right to free speech in
privately owned shopping centers.
Application:
Regional malls compete with and have displaced downtown business
districts as the gathering point of citizens.
The New Jersey Constitution’s right to free speech is broader than the
First Amendment. The court contended that leafleting would not hurt the business
of the mall as it did not for downtown businesses.
Conclusion/Holding: We decide that the defendant’s rules prohibiting leafleting
violate plaintiff’s free speech rights.
DISSENTING: The
primary users of shopping malls are shoppers.
It is a business. Some groups
would offend shoppers.
NOTES:
Mall owners wanted to keep it peaceful for shoppers.
Green Party of
Facts:
Plaintiff, wanted to leaflet Hartz.
The mall wanted him to follow three regulations. 1. Get
a $1,000,000 insurance policy. 2. Sign a “hold harmless” clause, and 3. Only one day per year. The premium for the insurance policy was $665
which was cost prohibitive. P filed suit
and was allowed to leaflet one day without insurance. The Chancery Division ruled
all three regulations were invalid. AC
held that all three regulations were good faith.
Issues:
What legal standard should determine free speech activities at shopping centers.
Rule: Peaceful leafleting are expressive activities involving
“speech” protected by the First Amendment.
Application:
Regional malls compete with and have displaced downtown business
districts as the gathering point of citizens.
The court observed that property rights must yield to the public
interests.
Conclusion/Holding: We disagree that the business judgment rule is the proper
standard
DISSENTING: The primary users of shopping malls are
shoppers. It is a business. Some groups would offend shoppers.
NOTES:
Stadium
Home Depot
Matthews v. Bay Head
Improvement Association
N.J.
p.258
Facts: D owned six out of 76 parcels of
oceanfront land. They lease the other
parcels from private landowners. D owns
the land commencing at the end of seven of these streets for the width of each
street and extending through the upper dry sand to the mean water line. It charges residents $60 to $90 per year for
membership.
Issues: Whether the public has a right to
use the dry sand area owned by a quasi-public body.
Rule: Land covered by tidal waters belongs
to the sovereign, but for the common use of all people.
Application: The public must be able to have access to the
beach as well as the dry area. The
complete pleasure of swimming must be accompanied by intermittent periods of
rest and relaxation beyond the water’s edge.
The Association’s activities paralleled those of a municipality in its
operation of the beachfront. There is no
public beach.
Conclusion/Holding: The public must be given both
access to and use of privately-owned dry sand areas
Noone v. Price (W.
Facts: The Ps purchased a home and four years later they became
aware that the wall under their front porch was giving way and that the living
room plaster had cracked. The defendant
owned a retaining wall built on the bottom of the hill.
Issues:
Whether the defendant was negligent in failing to provide lateral
support for their home.
Rule: An adjacent landowner is strictly
liable for acts of commission and omission on his part that result in the withdrawal
of lateral support to his neighbor’s property; however, there is no obligation
to support structures that land cannot naturally support.
Application: One who removes natural lateral support and substitutes artificial support to replace it, have an obligation
to maintain it. The defendant merely had
the obligation to maintain the wall to support the plaintiff’s land in its
natural condition.
Conclusion/Holding: Remanded for further hearing.
NOTES:
case took 14 years (NY average 7 years)
Friendswood Development Co. v. Smith-Southwest Industries, Inc. (
Facts: P alleges damage from D’s past and continuing withdraws of
vast quantities of underground water from wells on defendants’ nearby
lands. Plaintiff sues on negligence and
nuisance.
Issues:
Whether the defendant is liable for subjacent support to the plaintiff.
Rule: Owners have absolute ownership over their property. Law of capture except when
wasteful.
Application: P argue for the reasonable use rule. Only waste and malice
are limitations to the absolute ownership rule.
Conclusion/Holding: Holding against the plaintiff.
Dissent: This is a
nuisance case. The plaintiffs assert an
absolute right to keep the surface of their land at its natural horizon. The plaintiff does have a right to lateral
support.
NOTES:
Building codes may not a cause of action to support a law
suits. In these cases, common law is
used.
Page County Appliance Center, Inc. v. Honeywell, Inc. (
Facts: P owned and operated an appliance store with radiation
leaking computers next door. P sued
Honeywell and ITT for nuisance and tortuous interference with business
relations. J for the plaintiff, defendants appeal.
Issues: Whether the court erred in not addressing the issue of
unusually sensitive areas.
Rule: The plaintiff cannot, by devoting his
own land to an unusually sensitive use…make a nuisance out of conduct of the
adjoining defendant which would otherwise be harmless.
Application: To balance the issue of unusually sensitive area, the trier
of fact needs to look at certain uses.
The existence of a nuisance is not affected by the intention of its
creator not to injury anyone.
Conclusion/Holding:
The court on retrial should provide more guidance for the jury. Judgment reversed.
NOTES:
Nuisance per se - Certain businesses in residential areas;
funeral homes, sewer plant
Nuisance in fact (per accident) - certain acts that are a
nuisance
Private nuisance - only affects a small number of people
Public nuisance - harm to society in general or large numbers
of people
Nuisance - unreasonable use of the land which causes
substantial harm
Proper remedy - injunction; damages
Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc. (
Facts: P brought suit because D started to build an addition to
their hotel that would have shadowed the P’s resort hotel.
Issues: Plaintiff claims right to negative easement
Rule: The landowner had no legal right, in the absence of an
easement, to unobstructed light and air from the enjoining land.
Application: Where a structure serves a useful
and beneficial purpose, it does not give rise to a cause of action, either for
damages or for an injunction, even though it causes injury to another by
cutting off the light and air and interfering with the view that would
otherwise be available.
Conclusion/Holding: Judgment reversed.
PLAINTIFF
Proposed Building
Defendant
Prah v. Maretti (
Facts: D built his house next door to the P’s solar powered home.
Issues: Whether a construction of a residence interferes with his
access to an unobstructed path for sunlight across the neighbor’s property.
Rule: Private nuisance common law:
1.
The right of landowners to use their
property as they wished, as long as they did not cause physical damage to a
neighbor.
2.
Sunlight was valued only for
aesthetic enjoyment or as illumination.
3.
Society had a significant interest in
not restricting or impeding land development.
Application:
Private nuisance law has the flexibility to protect both a landowner’s
right of access to sunlight and another landowner’s right to develop land. Recognition of a nuisance claim for
unreasonable obstruction of access to sunlight will not prevent land development
or unduly hinder the use of adjoining land.
Access to sunlight has taken on a new significance in recent years. A landowner’s compliance with zoning laws
does not automatically bar a nuisance claim.
Conclusion/Holding:
Judgment reversed.
Dissent: A landowner’s
right to use his property within the limits of ordinances, statues, and
restrictions of record where such use is necessary to serve his legitimate
needs is a fundamental precept of a free society which this court should strive
to uphold.
Holbrook v.
Facts: The A gave permission to D to use the road for eight
years. The right to the use of this
easement was not established by prescription.
The appellee came to the
Issues:
Whether an easement by estoppel (Irrevocable License) could be
established.
Application: There is no other location over which
a roadway could reasonably be built to provide an outlet for appellees. D used to road to get to their home,
construction of the residence, and improvement of the road.
Conclusion/Holding:
Judgment affirmed.
Rase v. Castle Mountain
Ranch, Inc. (
Facts: The P owned homes around lake purchased by D who wants to
kick them out. P had a license agreement
with the prior owner. The court entered
judgment for a constructive trust.
Both sides appeal.
Issues:
Whether the agreement between the cabin owners and Tavenner entitled the
owners to an irrevocable license.
Application: Tavenner misled the cabin owners
into believing they did not have to fear the loss of their investment and so
allowed them to act to their detriment.
Conclusion/Holding:
Judgment affirmed. Payment or ingress and egress.
A-----------à------B--------à-----------C (equitable owner)
title beneift
license coupled with an interest
Irrevocable license terminates when the use
terminates
An easement does not terminate from
nonuse.
Constructive trusts are not required in
writing.
Granite Property
Limited Partnership v. Manns (Ill.1987) p.396
Facts:
D bought a parcel from the P who maintains two easements for access purposes. The D admitted that he saw the two easements
before he purchased the property. Form a
judgment for the P, D appealed.
Issues:
Did the plaintiff acquire an easement by implied reservation over
the driveways of the defendant?
Rule: There are two types of easements - easement by necessity and
the easement implied from a pre-existing use.
An easement implied from pre-existing use has three elements:
1.
common ownership of parcel then a
transfer separating the ownership
2.
before separation, the common owner
used part of the parcel for the benefit of another part, and the use was
apparent, obvious, continuous, and permanent and
3.
the claimed easement is necessary and
beneficial to the enjoyment of the parcel conveyed by the grantor.
Application: Easements were apparent, permanent,
and subject to continuous, uninterrupted, and actual use and reasonably
necessary for the beneficial use and enjoyment of the shopping center and the
apartment complex.
Conclusion/Holding:
Judgment affirmed.
Easements - express
prescription
by implication (quasi-easement) (by reservation or by grant)
by necessity
appurtenant
in gross
dominant estate (tenement); servient estate
(tenement);
actual notice
inquiry notice
constructive notice
Finn v. Williams (Ill.1941) p.403
Facts: Ps charge that the nearest and only available means of egress
from and ingress to their land to a highway is by means of a right of way over
D’s tract. Ps must now walk, with their
livestock, to the nearest road
Issues:
Whether P has an easement by necessity over the defendant.
Rule: Where an owner of land conveys a
parcel thereof which has no outlet to a highway except over the remaining lands
of the grantor or over the land of strangers, a way by necessity exists over
the remaining lands of the grantor.
Conclusion/Holding:
Judgment for the plaintiff.
Green v. Lupo (Wash. Ct. App. 1982) p.415
Facts: The D purchased parcel from Ps. The P agreed to a deed release to a small
section in return for the promise of an easement along the southern border of
their land. P used the easement as a
practice runway for their motorcycles.
The court ordered the plaintiff’s use to be limited to ingress and
egress for their own home and prohibited the passage of motorcycles. Plaintiffs appeal.
Application: In this case the easement was
appurtenant. A servient owner is
entitled to impose reasonable restraints on a right of way to avoid a greater
burden on the servient owner’s estate so long as such restraints do not
unreasonably interfere with the dominant owner’s use.
Conclusion/Holding:
Reversed and remanded so not to create a dangerous nuisance.
NOTES:
Express easement - former prop interest created by written
document:
Three
requirements:
1.
written and meet SOF
2.
intent
3.
notice (actual, inquiry,
constructive)
Cox v. Glenbrook
Company (
Facts: P bought the property to subdivide into 40 - 60 lots with an
easement for ingress and egress. The
road was a single lane dirt road and the plaintiff wanted to expand it.
Issues: Whether P can expand the road to make room
for his expansion.
Rule: The owner of an easement may prepare,
maintain, improve or repair the way in a manner and to an extent reasonably
calculated to promote the purposes for which it was created. Where the width of a right-of-way is not
specified in the grant, it is limited to the width as it existed at the time of
the grant.
Conclusion/Holding: Remanded.
Facts:
Ps were expressly granted the right to construct and maintain electric,
telephone, and telegraphic in a subdivision.
They granted easements to other parties to perform these duties. Those parties granted D a license to enter
upon their easements and erect cable. P
filed a trespass action.
Issues:
Whether the easements in gross are exclusive and therefore apportionable
by the utilities to the defendant.
Rule: One who grants to another the right
to use the grantor’s land in a particular manner for a specified purpose but
who retains no interest in exercising a similar right himself, sustains no loss
if the use is shared by the grantee with others.
Application:
The easements granted were exclusive as to the grantors thereof and
therefore apportionable. It is in the
public interest to let cable be installed even if it could not be foreseen 50
years ago when the easement was granted.
Conclusion/Holding:
Holding for the defendant.
ª Real covenants (covenants which run with the land at law)
in writing
notice
intent to run with the land
touch and concern the land
(related to use of land, land increased in value)
privity - horizontal -
(tenant/landlord, two owners granting easements to each other, sale
from common ownership (instantaneous privity))
vertical - (same property interests, succeed to the estate)
Only get damages from common
law courts in
Equitable servitudes (covenants which run with the land at equity, negative reciprocal
easements, implied negative reciprocal easements, etc.)
in writing (not every state)
notice
intent to run
touch and concern
(need common ownership in
most states to create)
(use common scheme to
replace most elements)
Grants
injunctions in equitable courts in
Broad or narrow chain of title search
Evans v. Pollock
(
Facts: A subdivision was plotted into lots A though G with
restrictive covenants. The dispute
occurred when two blocks were sold to D to build a marina, condos, etc. that
violated the covenants. P brought suit
seeking relief and injunction. Trial
court stated block F was not intended to have the restrictions in the general
scheme but block G was. Appellant court
reversed stating none of the retained lots were restricted.
Issue: Whether all the tracts in the development must be
intended to be subject to the restrictions
Rule: The doctrine of implied reciprocal negative easements
applies when an owner of real property subdivides it into lots and sells a
substantial number of those lots with restrictive covenants designed to further
the owner’s general plan or scheme of development.
Application: There is a general scheme of development furthered by
the restrictive covenants. It was
reasonable for the trial court to conclude that the restrictions were meant to
apply only to the lakefront lots.
Conclusion: Reversed.
NOTES:
Covenants may only cover part
of a common land in accordance of a general scheme.
Sanborn v.
Facts: D was deeded the title from her husband. D wanted to build a gas station in the back
of her lot. Restricted for residential
purposes, Ps sue.
From a decree for P, Ds appeal.
Issue: Whether the D was put on notice of the property.
Rule: Three types of notice for covenants: constructive, inquiry, and actual.
Application: No actual notice here, nothing on deed. Common owner only put restrictions on half of
deeds. Inquiry notice was obvious.
Conclusion: Affirmed
NOTES:
Apartment houses are not
desirable in a residential area and would defeat a
equitable servitude based on a residential restriction.
Is it a common scheme if only
half of the lots are restricted? The
court did not want the exploding gas station.
Riley v. Bear Creek Planning Committee (
Facts: P bought the lot without restrictions. Nine months later, the sub-division created
the covenant. P attempted to build a
covered walkway without authorization. P
wins, D appeals, affirmed in Court of Appeals, appealed.
Issue: Whether P is burdened with restriction not on his
deed.
Rule: Each deed must be construed at the time it is
given. Every material term of an
agreement within the statute of frauds must be reduced to writing. No essential element of a
writing can be supplied by parol evidence.
Conclusion: Affirmed
Dissent: Plaintiffs took the deed with the
understanding that the lot was subject to valid restrictions.
NOTES:
Blevins v. Barry-Lawrence County Association for
Retarded Citizens (
Facts: D wanted to start group home of 8 retarded
citizens on a lot with single-family restrictions. From judgment enjoining D
from using its property as a group home, D appeals.
Issue: Whether D violated the covenant and whether
the covenant violated public policy.
Rule: From the covenant restraining D’s
property: “The aforesaid real property
shall be used for residential purposes only.
No buildings shall be erected, altered, placed, or permitted to remain
on said real property other than single or double family dwellings.”
Application: When
there is any ambiguity or substantial doubt in the meaning, restrictive
covenants will be read narrowly in favor of the free use of property.
The house serves as a
surrogate family arrangement. D’s
intended use of its property does not violate the terms of the restrictive
covenant.
Conclusion: Reversed.
El Di, Inc. v. Town of
Facts: A restaurant in Bethany Beach wanted to serve
alcoholic beverages by request of brown bagging customers. Restrictive covenants prohibited the sale of
alcohol in the town. From
a permanent injunction against P, P appeals.
Issue: Whether the covenant can be enforced against
the sale of alcohol by D.
Rule: Changed conditions rendered the restrictive
convenants unreasonable and therefore unenforceable. Dispite the current restrictions,
commercial development has developed.
Conclusion: The change of conditions was sufficient to
negate the restrictive covenant. Reversed.
Dissent: The beach remain a
quiet, family-oriented resort when no liquor is sold.
Notes:
Termination - Changed conditions
Relative
hardship - benefit too small
Acquiescence
- if you have allowed action in the past
Abandonment
- give up trying to enforce
Unclean
hands - if you violating covenant,
you cannot enforce on another
Estoppel
- you failed to act
Laches
- too much time has past
Language
in covenant
Marketable
title act - a statute that says you must re-resister
Merger
- to common land
Release
- all servitudes are given up
Prescription
Blakeley v. Gorin
(
Facts: P wanted to construct a bridge over alley
connecting two hotels. D own a hotel next door and the claim the building would
violate a restrictive covenant. TC held
restrictions are unenforceable and awarded no damages.
Rule: No
restriction shall be enforced or declared to be enforceable unless it is
determined that the restriction is, at the time of the proceeding, of actual
and substantial benefit to a person claiming rights of enforcement.
Even if a restriction is found to be of such benefit,
it shall not be enforced except by award of money damages if any of several
enumerated conditions are found to exist.
Application: Restrictions are unenforceable,
however, the bridge will occupy most of the space between the two buildings for
a height of 12 stories.
Conclusion: Damages are to awarded to D
for loss of light and air.
William à tenants in chief à tenants à tenants
When tenant
dies, it went back to next highest man, no inheredence. (Starting in 1100, a fee could be paid to
inherit)
Primogeniture
- inherited only to oldest son
Inheritable
but not devisable (“willable”)
Feudal
incidents - first taxes (paid to higher land owner)
n aids - paying of captures (ex
lionheart)
n shaped modern property system as
people tried to aviod payment
n the lord from whom you held has the
right to take over the land if you die and leave a son under 21, and the right
to marry off sons or daughters and collect the money from it.
Transfer of
land have to aproved by the lord from whom you held and generally required a
payment.
O to A and
his heirs (these words defined who owned the property) - had to get
permission from LWH and heirs to transfer ownership to B. Starting in 13th century, the
words defined something different (fee simple absolute), “and his heirs” did
not include heirs in the desicion to sell.
Estate of Coparceny - women
inherited fee simple absolute as a group
History of the Transfer of Property
Feoffment with livery of seison (Feoffment -
the act of giving the property) (livery
- status of
ownership) (seison -concepts of ownership, possession,
and social status as associated
with
land)
Transfer of ownership had to
be on the property or within sight of it
n
problems with
proof
n
needed witnesses
(no females before 1800) (young boys made a business out of it) (beat boys so
that they would remember the day)
Fee Simple Conditional
n
an obsolete FSA
since 1300
n
X to A and the
heirs of his body
n
A had life estate
n
if A had a male
child declared by the church, born alive, and then the child dies, he had the
option of transferring the property in FSA to anyone
n
if child was
still alive at time of transfer, estate went to child
n
if no child or
only girls, it goes back to the lord whom you held
Fee tail
n
De Donis
Conditionalibus (of conditional girfs) 1285
n
Abolishes the SFC
n
As soon as A
makes a male child, the property will transfers to his heirs, otherwise back to
X
n
if king took your property interests (fee tail) and
kills him, it reverts backs to X which was probably owned by the same
family. Better to keep him alive.
n
Life estate in
some states in the Midwest.
Defeasible Fees
Fee simple determinable
n
possibility of reverter - a future interest of grantor
n
under common law,
was inheritable but not transferable,
divisible)
changed by most states)
n
not subject to
the rule against perpetuities
n
alienable,
inheritable, divisible
n
most courts do
like FSD
n
“O to A unless as
used for church purposes; if used for non-church purpose, the property shall
automatically revert to O.
n
watch for fee
simple absolute
n
Marketable Title
Acts state the possibility of reverter may only last a certain period of time,
ex 50 years
Fee simple subject to condition subsequent
n
only if grantor
asserts her interest
n
right of entry
n
fully
transferable and divisible in most states (Common law is opposite)
n
O to A, but if used for nonresidential purposes,
O shall have a right of entry
n
statue of
limitations on FSSCS runs from date of offense
n
Adverse possession
does not start until grantor exercises interest
n
because is a
future interest in grantor, there is no perpetuities
n
MTAs define time
period
n
transferable
Fee simple subject to an executory limitation
n
executory
interest - future interest in third party
n
only by cutting
short the present estate
n
always
transferable and divisible
n
O to A so long as
used for residential purposes, then to B
n
transfers
immediately when violated
n
some states allow
to set up so that a third party must assert the interest
n
never vested
therefore it is always subject to the rule of perpetuities
Life Estates
n
can use it while
alive
n
all current
interests are called “life estate”
n
not divisible or
inheritable
n
reversion -
future interest in grantor
n
A to B for life
(unstated reversion ***test question***)
n
never subject to
the rule of perpetuities
n
A to B for the
life of C - life estate for the life of another
n
is divisible and
inheritable for B
n
C is measuring
life (must be human being)
n
remainders may be
subject to the rule of perpetrates
n
A to B for life ,
provided it be used for residential purposes, if not so used, then to C
n
defeasible life
estate
n
executory
interest
n
right to invade
the corpus
n
A to B for life,
then to C, however, B shall have right to invade the corpus
n
B has the right to
sell part or all of the property in fee simple absolute
n
power of
appointment - can grant a greater property interest than he owns
n
C’s remainder can
be wiped out
n
FUTURE INTERESTS
IN THIRD PARTIES
n
under common law,
one future interest only called a remainder (third party future interest that
meets certain rules)
n
use - (modern
term - trust) A to B and his heirs for the use
of C
n
B has fee simple
n
C has beneficiary
- cestul que use
n
B does not have
the right of income
n
could create
chain of interests for C
n
alternative for
fee tail
ª in 1536, the Statue of Uses said you cannot separate
use from ownership
ª C then gets land in fee simple absolute
ª Shifts to common law court
ª still allowed chains
ª no longer had to go onto the property to transfer
title
ª the Statue of Enrollment - stated you could only transfer
title in the written document that is recorded.
ª In 1540, the statue of Wills was passed, that stated
property could be transferred by will
ª executory interest
- a not a remainder
ª follows a fee simple or springs into existence in the future,
or cuts short a prior estate.
ª subject to the rule of perpetuities
ª X to A in 10 years - springing executory interest
ª anytime
future interest comes from grantor, it is a executory interest
n
X to A for life,
remainder to B, but if B dies before A, then to C
n
shifting
executory interest
n
C is the
executory interest because there may be no remainder
n
power of
appointment - creates greater interest for grantee
n
typical for
trustees of wills to determine where the estate goes
n
transferable
n
remainders
n
limited to third
parties
n
creating in a transferee which can become a present possessary
estate only on the natural expiration on
a prior estate created in favor of another transferee in the same
instrument and which does not follow a
fee simple interest.
n
VESTED REMAINDERS
n
Absolutely vested
remainder
n
X to A for life,
remainder to B
n
if A outlives B,
it goes to B’s heirs
n
must be living to
be absolutely vested
n
Vested remainder
subject to open (partial divestment)
n
subject to being
reduced by more people entering the category
n
O to A for life,
then to the children of B
n
B has at least
one child at the time
n
if a child dies
before the end of A’s life, benefit is inheritable
n
most states close
the class when A dies
n
in ½ the states,
it is subject to the rule of perpetuities
n
Vested remainder
subject to complete divestment
n
O to A for life,
then to B, but if B has flunked out of law school, the property shall then
revert to O.
n
a vest remainder
with a condition
n
O to A for life,
then to B, but if B does not survive A, then to C (vested remainder because the condition is
separate)
n
O to A for life, then to B if she survives A,
otherwise to C (contingent remainder because it is in the statement )
n
CONTINGENT
REMAINDERS
n
a condition
precedent (if stated first or it is in the statement of the remainder)
n
in close cases
some states prefer vested remainder
n
O to A for life,
then to B if B has graduated from law school
n
person is not
known
n
moves to VR when
person is born
n
unascertained
person
n
don’t know
exactly who it is
n
all CR subject to
rule of perpetuities
n
are subject to be
destroyed therefore, all are accompanied by an unstated reversion
n
merger can
destroy in a state that allows destructibility
n
Doctrine of
Worthier Title
n
O to A for life, remainder in the heirs of O is read O to A
for life, reversion to O
n
abolished in he
majority states
n
Rule in Shelley’s
case
n
it was more noble
to inherit rather than getting it as a gift
n
O to A for life, remainder to A’s heirs is the same as O to A and his heirs therefor leaving a
life estate to A
n
this rule is not
used in most states
Springing interest = coming
from grantor
Shifting interest = coming
from another party
RULE
AGAINST PERPETUITIES:
n
any property
interest that can last forever on future interests in 3rd parties
n
No interest is good unless it must vest, if at all, no
later than 21 years after the death of some life in being at the creation of
the interest.
n
avoids “dead hand
rule”
n
invented in late
17th century
n
only applies to:
n
contingent
remainders
n
executory
interests
n
powers of appointment
n
vested remainders
subject to open (in half of states)
n
options to
purchase not in leases
n
creates equitable
conversion (future interest)
n
in leases, option
must be taken during lease (or up to 21 years after termination of lease in
some states)
n
rights of first
refusals in condo and co-ops (in half of states)
n
does not apply
to:
n
present estates
n
interests of
grantors
n
can add the
gestation period of an unborn child
n
Vests when: all conditions precedent have been
satisfied
n
all people are
there and we know what there share is (problem with VRSTO)
n
A to B for life,
then to the grandchildren of C
n
half of states,
this is not subject to RAP
n
Unborn Widow Rule
n
A to B for life,
then to B’s widow for life, then to B’s surviving children
n
B is not a life
being because she might not be alive at A’s death
n
if B is not a
life being, the children’s interest may not vest in 21 years after B’s death
n
most states have
reversed this rule under statute
n
Fertile
Octogenarian
n
A to my children
for their lives, then to my surviving grandchildren
n
Changes in
Interpretation:
n
Cy Pres doctrine
- reason with common sense
n
Wait and See Rule
- wait for a perpetuities period
n
Uniform Statutory
Rule Against Perpetuities - must vest within 90 years of the date of creation
·
O to A so long as
used for school purposes, then to B.
·
void under RAP
·
English rule
change - O to A in fee simple absolute
·
American Rule - O
to A so long as used for school purposes, possibility of reverter to O
New Jersey - abolished RAP
n
covers some trust
situation
Restraints on Alienation - limits on present estates
n
can not remarry
clause
n
can not sell your
interest
n
forfeiture
restraints - take the property away
n
promissory
restraints
n
disabling
restraints
Wood v. Broad of
Facts: P conveyed deed to D stating the land had to used for a hospital.
After 40 years, D sold the land to a private company who tore the
hospital down. From
summary judgment for D, P appeals.
Issue: Whether cessation of D’s hospital operation
constituted the occurrence of an event which divested D of its estate in
property conditionally conveyed by P.
Application: TC found that P retained no interest in the
land. The language does not clearly state that the estate conveyed will expire automatically
if the land is not used for the stated purpose nor does it clearly state an intent of the grantors to retain a discretionary
power to reenter the land if the land ceased to be used for the stated purpose.
Conclusion: Affirmed
Forsgren v. Sollie
(
Facts: P conveyed property to D to be used as a
church but D left the state. The
frontage of the property was sold for taxes and repurchased by the P. X purchased the remainder of the lot. P poured concrete for footings and X knocked
it over. P sued for quiet title. TC stated a FSSCS with a right of reentry.
Issue: Whether P could reacquire the property if the
deed contained no words indicating a reversion.
Rule: 4
conditions:
1.
The language of the instrument
2.
The nature of the event specified in the condition and
its importance to the grantor
3.
The amount of consideration paid for transfer in
proportion to the full value of the estate in fee, and
4.
The existence of facts showing the grantor’s intent to
benefit the adjacent land by the restriction imposed on the conveyed land.
Application:
The grantor exercised her power of termination by reentering premises and
thereby reacquired in FSA.
Conclusion: Affirmed.
Riste v. Eastern Washington Bible Camp, Inc. (Wash. Ct. App. 1980) p. 561
Facts: D subdivided and lots sold only to people who
agreed to subscribe to the church. D
issued the deed to P that contained restrictions on resale. P tried to sell the property contrary to
restrictions.
Issue: Whether the restrictions are against public
policy and thus void.
Rule: A clause in a deed prohibiting the grantee
from conveying land to another without the approval of the grantor, when the
grantor transferred a fee simple estate to the grantee, is void as repugnant to
the nature of an estate in fee.
Application/Conclusion: Sellable.
Hankins v. Mathews
(Tenn. 1968)
Facts: Hankins leaving property to Grubb who is to
keep in his possession the property for 10 years before sale or the property
would go to the heirs of Hankin (P).
Grubb sold to D before 10 years.
P brought suit.
Issue: Whether P is entitled to the property
Rule: A condition in a devise in fee that the
devisee shall make oath that he will not dispose of the estate during his life
is void.
Application/Conclusion: No
Northwest Real Estate Co. v. Serio (
Facts: Grantees contracted to sell to D but P
rejected the sale based upon restrictions to the property that the grantee
could not sell or rent the land without P’s consent.
Issue: Whether the restraint to be imposed is void
as being repugnant to the granted estate.
Rule:
Restraint on alienation.
Application: On the theory that the quoted covenant is
void, the averment was arbitrary and unreasonable.
Conclusion: Yes
Restraints on Alienation:
Disabling - always void, ex. Cannot sell for a number of years
Forfeiture - have to give
something up, ex. if you get married you have to give it up
n if you have a fee simple, more likely to be
unreasonable
Promissory - make a promise, buy options on a fee simple
Horse Pond Fish & Game Club, Inc. v. Cormier (N.H. 1990) p.569
Facts:. P deeded a property to two of its members who
conveyed it back the same day with restrictions stating the parcel shall not be
alienated unless a 100% vote from members or the club is dissolved. P conveyed a meeting to approve a land swap
where D voted against it. P filed suit
seeking a declaration that the restriction in the deed was void as an
unreasonable restraint against alienation.
P’s motion for summary judgment granted.
D appeals.
Rule: The
rule of reasonable restraints however, generally does not apply in the case of
a gift to a charitable trust or charitable corporation.
Application: The P’s organization was established as a
non-profit.
Conclusion: Reversed.
Options to Repurchase
Facts: X conveyed to P a
option to repurchase for public purposes only.
P used the property for 26 years and ceased operations for public use. P seeks quiet title stating RAP invalidates
it.
Issue:
Whether the RAP is invalid because of public policy.
Rule: A option to
repurchase is normally subject to the RAP
Application: Public policy does not void the rule of
perpetuities.
Conclusion: Reversed
Texaco Refining and Marketing, Inc. p.606
Facts: P executed a 15 year renewable lease with
option to purchase to D. After 23 years,
D exercised his option but P refused.
Issue: Whether the RAP invalidates the option to
repurchase.
Rule: RAP does not apply to an option to purchase
in a commercial lease.
Application: Does not apply to a commercial lease with
these terms. Every renewal is a new
lease.
Conclusion: Enforceable
Cambridge Co. v. East Slope Investment Corp. p.607 Colo
Facts: D gave first notice to purchase for a condo
unit but X sold to another purchaser anyway.
D sued condos (P).
Issue: Whether the RAP invalidates the right to
purchase clause in the condo’s declaration.
Rule: The rule does not serve the purpose for which
it was designed for (preventing restraint on alienation or improvements of the
property).
Application: ROP does not apply since the sale price is
the same as the biding price
Conclusion: Clause valid.
NOTE: Court have split 50/50 in ROP case such as
Cambridge.
1. A person who has a future interest in a property has
the right to visit the property to make sure it is being maintained properly.
2. If waste is found, courts will demand repair.
Voluntary waste (commissive, active) - tenant
deliberate caused harm to the property
Ameliorating
waste (ameliorative) - tear down non-profit-making building to build a
profit-making one.
Permissive
waste (passive) - failure to keep the property in repair
Facts: Claim
of waste of heir to a life estate. P waits until mother died before stating
claim. D appeals judgment for P.
Issue: Whether remainder, by waiting 11 years, is
barred by laches or estoppel.
Rule: 1. Permissive waste is the failure of the
tenant to exercise the ordinary care of a prudent man for the
preservation
and protection of the estate.
2.
Laches is a failure to act to prevent waste
3.
Estoppel may involve an affirmative act
Conclusion: Affirmed
Constructive Trusts
Roper v. Edwards
p.577 NC
Facts: P’s grandmother conveyed all of a 136 acre
tract to D with stipulation that a one acre piece of the tract would go to the
P at her death. D refused to give it up. Property given in fee simple has no legal
duty to convey because of restraints on alienation. P seek a
constructive trust.
Issue: Whether the P is entitled to a constructive
trust.
Rule: A constructive trust is
a duty imposed by courts of equity to prevent the unjust enrichment of the
holder of title to, or an interest in, property which such holder acquired
through fraud, breach of duty or some other circumstance making it inequitable
for him to retain it against the claim of the beneficiary of the constructive
trust.
Application: The Ds were constructive trustees of the
property and must convey it to the Ps
Anticompetitive Covenants
Dunafon v. Delaware McDonald’s Corp. p.581 Mo
-
Taco Bell wanted to open up a store in D’s mall that had a covenant not to
compete. Court held P could open up a
store in many other places.
Adult, single women
n Could not testify in court and were in a
disadvantage.
n Coparceny - if there were sons to inherit property,
all the daughters would inherit the property until they married.
n The title then became a tenancy by the entirety where the husband would control the
property. The surviving spouse would own
the property in FSA and would be passed to the heirs.
n It they did not marry, it passed to the lord whom held
the property.
Married women
n As soon as a woman married, all her property belong to the husband.
n All her real property was in jure uxoris.
n Once a child was born alive, the property became curtesy (husband had life estate as long
as they are married).
n Wife is not the legal heir of her husband.
n Could not earn money or file lawsuit.
n Dower rights - Widow was entitled to 1/3 of the income
from all the property ever owned while they were married. Waiveable.
n if husband created an active use with himself as
beneficiary (A to T for the use of A), the dower rights would not arrive
because the trustee owns it. Until 1834,
only a man could do this.
Prenuptial agreements were
allowed by equity courts.
Husband and wife could enter
into agreement to let wife run the land.
Equity courts would allow
trusts for wives. (wording
- “separate use”)
Equity courts would allow
trustee to sue on the behalf of the wife.
In US, the equity courts were
not as strong.
Women often ran the land
because the men traveled.
In 1834, US and Britain
adopted the Married Women’s’ Acts
NY passed three acts
1848 - assured
woman could retain the property she had before marriage.
abolished
the need for trustee
1849 - women
had the right to convey her own property with her husband’s permission
1860 - authorized
women to open up her own business with no interference by her husband and she
kept the profits
It took until 1977 to give a
woman the right to sell her property in all 50 states
Required share - the
surviving spouse has a right to a certain percentage of the estate
Restrictions based on
Discrimination
Shelley v Kraemer US 622
Facts: Black Ps bought land that D
neighbors claimed had a restrictive covenant for whites only. TC invalidated covenant. State Supreme Court reversed and title go back to seller.
Issue: Whether the covenant was valid
and did it violate Ps 14th amendment rights.
Rule: Covenant is valid only if
action is taken by private party and NOT by government.
Application: There was no
common ownership here.
Conclusion: Reversed
Today, it is illegal to discriminate privately AND
publicly.
Evans v. Abney US 629
Facts: Senator willed a property to
town as trustee to a white-only park.
Issue:
Rule:
Application:
Conclusion: Trust failed and can go back to estate.
DISENT: The closing of the park is unfair
His
seven grandchildren were declared owners of property who sold the property to
developers who shut the park down and build commercial and residential
buildings.
Joint
Tenancy (time, title, interest, possession)
Each tenant has the right to
possess the land
Required to possess equal
fractional interests
Has right of Survivorship - upon
death, the interests transfer to other joint tenants
Formalities of Creation
Time
Title
Interest
Possession
Some states have
abolished these formalities
Severance
When a joint
tenant transfers his interest, the right of survivorship is destroyed and the
property is held as a tenancy in common
If A sells her
one-half undivided interest to C, however, the joint tenancy is severed, and
B’s right of survivorship is destroyed
A
joint tenant who wishes to destroy the right of survivorship while retaining
her life
interest can convey her interest to another who conveys it
back
Joint tenancy versus dual life
estates with alternative contingent remainders
O to A and B as life
tenants, with a remainder in A if A survives B, and a remainder in B if
B survives A.
Tenancy
in Common
Each tenant has the right to
possess the land
Undivided interest
The current practice is to
interpret the conveyance as a tenancy in common
Divisible in a will
Tenancy
in Common with right of survivorship (tenancy in common with alternate
contingent remainders)
Tenancy
by the Entirety -
- abolished in
most states
- similar to joint tenancy except
-
co-owners must be legally married
-
property cannot be partitioned except through divorce
-
interest cannot be sold, transferred, mortgaged
without consent
-
right of survivorship cannot be destroyed
-
creditors cannot attach property
Condominium
Cooperative
Benefits
- possession, use, rent, proceeds, etc.
Survivorship
Burdens
- mortgage - share
taxes - share
repairs -
If a co-tenant makes repairs with notice, the other co-tenants are generally
responsible to contribute.
Without notice, states are split.
capital improvements - must get agreement from other
co-tenants before making such
improvements
- if no permission is granted
before building, some states treat
it as a gift, some states grant ownership of building to the
single co-owner
Ouster
- any act which interferes with the free
use of the property by the co-owners
- changing locks, letter,
pulling a gun
- generates the duty to pay rent
and other charges
- actual
-
- constructive
- (ex house is too small and court creates an ouster)
Partition
--physical partition - splitting the property up so each co-owner owns a piece
in FSA
- partitioned by size or value
- more desirable when the value of the property does not
change
- 4-sale partition - done by
court in a sheriff’s sale
-
losses much of the value
Adverse
Possession - the actions one each co-tenant is done for the benefit of the
group, however
- a super-ouster is when a co-tenant may notify the other
co-tenants that he is
beginning adverse
possession. (fly
the flag high)
- can be broken by filing suit
or going on property
- adverse
possessor must pay rent up to statute of limitations
-
some states deny any adverse possession
Olivas v. Olivas N.M 715
Facts: Couple got divorced. Husband wanted court to say he was ousted so
he could collect rent.
Issue: Whether they was an
constructive ouster
Rule: The character of the property
must be such as to make such joint occupancy impossible or impracticable.
Application: Husband
voluntarily moved out to live with his girlfriend.
Conclusion: No ouster
Notes: Constructive ouster recognized with divorces
when it would be unreasonable to the couple to live together.
Carr v. Deking Wash 719
Facts: Two tenants-in-common. One co-tenant (father) made a lease without
the other co-tenant’s (son) consent.
When the former co-tenant died, the son brought suit against D to break
lease because he now owned in FSA.
Issue: Is the lease valid
Application: The lease is
valid and P cannot be ejected. The
proper remedy is partition.
Tenhet v. Boswell
Facts: Joint tenant leases his
interests with an option to purchase and then dies. Other joint tenant looking for sole
possession.
Issue: Whether the lessee’s interest
in the property effected a severance of the joint
tenancy
Rule: 5 options: 1. Lease valid - no
severance for life of lesser/term whichever is shorter
2. lease valid for term - severs JT
3. lease invalid - no
severance
4. lease temporarily
severs - if JT dies during lease, lease continues, tenants-in-common
5. lease is valid for
its term - no severance
Application: Lease is not so inconsistent with joint tenancy as to create a
severance. The lease of the joint
tenancy property also expires when the lessor dies. You need an express statement to destroy a
joint tenancy.
Conclusion:
Kresha v.
Facts: Co-owner leased property
without consent from the other co-owner (P).
Latter brought suit. Dissolution
decree awarded the land to P and P brought forcible entry and detainer action.
Issue: Whether P’s land was subject
to the D’s leasehold interest
Rule: One of several tenants in
common can lease his own interest to third persons
Conclusion: P acquires
the property subject to the lease
Sawada v. Endo Haw 728
Facts: After P was injured by an
uninsured motorist (D), D transferred his and his wife’s tenancy by the
entireties interests to their son. P
brought suit to set aside the conveyance.
Issue: Whether P could attack a
tenancy by the entireties.
Rule: The interest of a husband or a
wife in a estate by the entireties is not subject to
the claims of his or her individual creditors during the joint lives of the
spouses.
Conclusion: Conveyance
was not fraudulent.
Notes: In most states with tenancy by the
entireties, the interests of P would be held until the wife dies first. P was an involuntary creditor. Most property in
Condominiums and
Cooperatives
Condo
- Buying the cube of air - do not have the right to
have the building repaired in case of destruction.
- tenant in common for the
common areas
- cannot sell or rent your share of common areas
separately
Co-op
- tenants are shareholders
in a corporation that owns the building
- % of ownership depends on size of apartment
- single mortgage on entire
mortgage
- rent paid goes to mortgage
and common area
- fewer than 10 co-op survived the depression in NYC b/c you
pay the portion of the rent of anyone
that leaves
- today it is now possible
to get a mortgage on the co-op rented interest so the buyer does not have to
pay
cash up
front
Restraint on Alienation
Wolinsky v.
Facts: P who already owns a
unit, wants to move into another unit.
Condo D exercises right of
first
refusal. P yells invalid restraint on
alienation, a vote of less than 2/3, and discrimination
Application: The board owns a duty to the members to act
in a reasonable manner
Conclusion: The ordinance may have been violated
Aquarian
Foundation, Inc. v Sholom House, Inc. Fl 741
Facts: Member sold her condo unit without obtaining
consent from association (D) and thus
triggered
a reverter clause that stated she lost her condo. D also wants damages. TC found for D.
Application: Imposes no obligation upon the association to
compensate the unit owner for the ability to
reject
offers. Not the same as a right of first
purchase.
Conclusion: Reversed
NOTES:
Breene v.
Facts: Condo adopted provision with a
¾ vote that prohibited rental units. P
requested permission to rent his unit and was denied.
Application: Any drastic
changes that the board makes are only applicable to future buyers
NOTES: NOT THE NORM!
Reasonable limits on Condos
O’Buck
v.
Facts: $155,000 in roof damages to condo which
adopting a rule prohibiting antennas. P
had four TVs and
antennas
and did not want to pay for cable.
Application: In order to
preserve a uniform exterior appearance and enhance marketability, the board was
justified in prohibiting antenna.
LANDLORD - TENANT RELATIONS
4 TYPES
Term for years lease - any lease with a definite starting date and a definite ending date
(SOF limitations)
- no
notice is required to terminate after term, must re-contract for new term
- 99 year leases are
often named a fee simple with a reversion
Periodic lease
- defined period that automatically renews unless broken by leasee or
leaser.
- had to give notice on first or last
day of period in common law
- to raise
rent, had to notify and stop old lease then notify and start new one a day
later
At-will lease
- no defined dates or periods
- requires no notice
- terminate upon death of tenant or
landowner
- terminates if land is sold
- Uniform Landlord-Tenant Act -
states there must be a 30-day notice to terminate and tenant must
pay rent. (Adopted by some states)
- NJ has three month notice
At-sufferance
- held over after the termination of a lease
- tenant may
be bound for a new term or treated as a month-to-month tenant
RULES
- courts are looking at
leases more as contracts than property conveniences
- American rule - landlord only has to give the legal
right to possess
- English rule - landlord must give actual possession
- Common Law rule - landlord has no obligation to
protect tenant against third parties
- landlord gives Covenant
for Quiet Title - stating landlord, agent of landlord, or anyone with superior
title
cannot bother
tenant
-
Common Law rule stated there was no Covenant for Fitness
- no obligation to repair in commercial leases
- Eviction: a violation of a covenant of
a lease by a landlord dependent on the obligation of the tenant
Actual - physical, changing of locks, force
Total - tenant physically barred from
property, eliminates future duty from tenant
-
may have tort against landlord (forcibly entry or detained)
Partial - landlord has taken a part of
the property
-
no duty to pay rent
-
some states proportion the rent
Constructive - taking action which causes the tenant to feel
insecure but no physical act
- letting band or dynamite factory rent
one of the landlord’s apartment
- tenant is
free from all future obligations
-
Common Law states tenant must move out VERY promptly
Total - as above
Partial - NY leads the way
-
air conditioner that leaked green goo
Remedy for Landlords:
Summary Eviction Procedure -
shorter time frame
Common Law states you could fail
to renew lease for any reason
Offer
to surrender: Landlord can:
1. Accept - tenant has no obligation
2. Refuse, Sit and do nothing - most states say
there is duty to mitigate
3. Refuse, Seek replacement
-
tenant pays any decrease in rental income
Vasquez v.
Glassboro Service Association, Inc. NJ 767
Facts: P was recruited to work on
farm, was fired, and kicked out of housing.
Application: A farmworker who possesses a mattress and locker in
a barracks is different from a
superintendent or janitor residing with his family in a apartment building.
Sommer v.
Facts:
Issue:
Minjak Co. v.
Facts:
Issue:
Rule:
Implied Warranty of Habitability
-
property must be livable; including means for heat, electricity, hot water, no
infestations, plumbing, fire
safety, crime
safety, waterproof, structural integrity with a minimum number of windows,
sanitation;
lighting, stairs,
sometimes telephone lines, stove
-
renting rooms generally not applicable to rule
- covers
tenants, others who live in the apartment, others who live in the building,
social guests who were
harmed because of
the condition, business invitees harmed, tresspassers
harmed (split in states), neighbors
harmed through
damage from landlord violation (minority view), passers by (rape victim dragged
into
unlocked apartment
building) (minority view)
- tenant can use act as
Defenses
- an affirmative defense in
an eviction
- reason
to terminate the lease and move out without being bound
- tenant must notify the landlord unless the listed violations
are fixed in 14 or 21 days
- abatement
(reduction) of rent, remainder to a escrow account
- repair and deduct (some states
say no more than one months rent per year)
Offenses
- order
to repair
- suit
for damages to recover rent
- physical
injury and emotional distress
- property
damages
- criminal
injuries (half of states)
- 20
states say the warrenty is waivable
on a separate agreement
- landlord defenses:
- ignorant
of situation, no notice, or not enough time after notifacation
(most states)
- not a
violation
- violation
was caused by the tenant unless it affects other tenants
- repair
is under way
- no
such condition
Javins
court says landlord is provider of goods and services
Retaliatory Eviction
If
tenant complains on good faith:
-
can’t refuse to renew lease
-
can’t raise rent more than others
-
can’t take away services
However,
in some states the complaint must be vaild. If not, there is no retaliation claim
Tenant
can complain to: government agency, landlord, tenant organization, court
6-month
period from complaint (some states 1-year)
There
are several defenses